Intergovernmental Conference 1996: Which Constitution for the Union?

DRAFT -- COMMENTS VERY WELCOME!
Intergovernmental Conference 1996:
Which Constitution for the Union?
Michael Nentwich and Gerda Falkner*
(European Law Journal 1/96, pp. 83-102)
Abstract: This paper addresses the five major structural issues on the agenda of the 1996
Intergovernmental Conference (IGC) of the Member States of the European Union: the
option of replacing the treaty framework by a European constitution; the issue of fundamental
rights in the Union; the future of the three-pillar structure; the puzzling question of how to
allow for variations in European integration without endangering unity; and, finally, the
political `evergreen' of the division of competencies between the Union and its Member
States. The analysis is based on the contributions by EC institutions and a series of prominent
(groups of) experts and scholars which were published before the political bargaining started
with the establishment of the so-called reflection group preparing the formal agenda of the
conference.
Contents:
I. Introduction ...............................................................................................................................1
II. Treaty or Constitution? ...........................................................................................................2
A. The Proposals ....................................................................................................................2
B. The Status Quo and Beyond: A Pragmatic View...............................................................6
III. A Bill of Fundamental Rights for the EU? ...........................................................................8
IV. The Future of the Three-Pillar System ...............................................................................10
V. Flexibility within Unity: Variations in European Integration?..........................................13
A. The Models......................................................................................................................13
B. Political Statements..........................................................................................................15
C. Expert and Scholarly Viewpoints ....................................................................................17
D. Let-Out-Clause ................................................................................................................20
E. Towards a Solution? ........................................................................................................21
VI. Division of Competencies between EU and Member States ..............................................21
A. A Catalogue of Competencies or Strengthening Subsidiarity?........................................22
B. No Escape from Politics?.................................................................................................26
VII. Conclusions ..........................................................................................................................27
Bibliography ................................................................................................................................28

*
M. Nentwich is lecturer at the Research Institute for European Affairs, University of Economics, Vienna,
Austria. G. Falkner is lecturer at the Institute for State and Political Sciences, University of Vienna, Austria.

IGC 1996: Which Constitution for the Union? Nentwich/Falkner
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I. Introduction
Looking at the ongoing debate on how to reform the European Union during the forthcom-
ing Intergovernmental Conference (IGC), it is undeniable the very basic structure of
European supranational co-operation which is once again at stake. Clearly, the most political
phase of the whole process has only just begun with the formal setting up of a reflection
group consisting of personal representatives of the Heads of State and Government at the
June 1995 European Council in Messina. However, the more informal early stages of
preparation of the IGC, which were dominated by the presentation of discussion papers by
groups of academics and bureaucrats (in fact starting already with the presentation of the
Maastricht compromises), as well as reports by the European institutions on the functioning
of the Treaty on European Union (during spring 1995), have shown that -- at least at the
expert level -- the issues under consideration go even far beyond those few matters explicitly
scheduled for review in the TEU1 or meanwhile put on the agenda by the European Council2:
Should the Union be based on an explicit constitution which possibly guarantees fundamental
human (and even social) rights? Should the present system of three `pillars' with different sets
of institutional and rules of competence be prolonged? How about more flexibility for
differentiated integration within diverse policy fields -- possibly at the expense of unity?
Shall the principle of subsidiarity be reformulated? Should individual Member States be
allowed or even forced to step out of the Union? The latter questions are mainly raised in the
perspective of a Union further enlarged to the East and South. Joint policy-making in a
Community of up to 30 members, including the Central and Eastern European Countries plus
Cyprus and Malta, would have to pay tribute not only to increased numbers but as well as to
increased diversity. This brought the dispute over variable geometry, multiple speeds or pick-
and-choose Europe back on the political agenda.

1 Mainly the co-decision procedure and the issue of introducing a hierarchy of norms.
2 I.e.the legislative role of the EP, number of Commissioners, weighting of votes, budgetary procedures, and
comitology.

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Over the last two years, all those topics converged into what may be called a genuine
constitutional debate3. Not only a series of profound and innovative proposals with respect to
specific problems, but also at least two comprehensive proposals for a European Constitution
have been published with a view to the IGC4. For the purpose of this article, we concentrate
on some of the major topics of this discussion, because they touch aspects of the basic legal
and political structure, in other words the overall constitutional architecture of the European
political system. Following the outline of relevant political and expert statements concerning
those issues, we will present reflections from legal and political science points of view, as
well as some political and pragmatic recommendations5.
II. Treaty or Constitution?
A. The Proposals
As outlined above, a series of developments have widened the scope of the IGC to a point
where many argue that the time to draft a formal Constitution has come. Two lines of
reasoning converge in that respect: the first being the more fundamental aspiration to solve
the pressing problems of the Union with a single stroke (see below i.), the second being the
rather pragmatic perception of the necessity to redraft the Union framework (possibly without
major reforms) in order to make it more accessible and appealing for the European citizens
(ii.).
(i.) Among the many proposals suggesting a profound reform of the European Communi-
ties in connection with the creation of a single constitutional framework is, for instance, the

3 Furthermore, the difficult ratification process of the Maastricht Treaty (February 1992 until October 1993)
made obvious that the `Maastricht Union' marks a still unsatisfactory stage of democracy at the European
level. For lack of space, we could not include the debate on reforms regarding the direct as well as
representative democratic elements of EC policymaking (but see e.g. Falkner and Nentwich 1995; Nentwich
and Falkner 1995).
4 European Constitutional Group 1993, and Herman Report 1994, see below.
5 For reasons of space, we concentrate on the new contributions made in the ongoing debate and decided not
to include the vast general literature on the legal and political system of the Union, e.g. the constitutiona-
lisation of the EC-Treaty, which clearly represents the relevant background of the whole debate.

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German CDU/CSU paper6. It calls for `a constitution-like document (...) delimiting the re-
spective competencies of the EU, the Member States and the regions in clear language and
defining the ideal basis of the Union'. This document should be oriented towards the federal
state model and the principle of subsidiarity7. `Justus Lipsius'8 ask for a new and single legal
entity, the European Union, which should be given legal personality and treaty making
power9. Therefore, he wants to replace the existing number of treaties by one `Treaty-Charter'
which should be `as short and readable as possible, dealing with principles, competence and
institutional matters, and on the other hand, a number of Protocols annexed to it, dealing in
detail with specific matters, such as the Internal Market'10. The Committee of the Regions
(CoR) is currently the only EU body which explicitly calls for a `basic text' which should
include provisions concerning the fundamental rights of the European citizens, the aims of
the European Union, the institutions of the Union, and the competencies of these
institutions11.
With regard to a genuine draft constitution, there are -- apart from several proposals dating
from before the Maastricht Treaty12 -- also two recent and widely discussed examples for the
`qualitative leap' policy. The European Constitutional Group13 has already by choice of name
expressed its thorough belief in the need for a constitution, and indeed presented a draft14.
Obviously, the future of European integration desired by this Group would digress consider-
ably, not only from the present institutional structure but also from underlying guiding
principles in European policy as outlined or at least allowed for by the Treaties -- such as the

6 The two leading politicians of the major fraction in the German Bundestag (christian-democrat CDU/CSU),
Wolfgang Schäuble and Karl Lamers, on 1 September 1994, presented a paper entitled 'Reflections on
European Policy'.
7 CDU/CSU September 1994, p 5 (our translation).
8 An anonymous `international civil servant' obviously from the EC Council.
9
`Justus Lipsius' 1995, p 51.
10
`Justus Lipsius' 1995, p 52.
11 CoR Resolution from 20 April 1995, CdR 136/95, pt 14. Interestingly, the CoR calls the Maastricht Treaty
`a European constitutional text', CdR 136/95, 2.
12 E.g. Parliament's Draft Treaty on European Union 1984 (so-called Spinelli initiative), OJ 84/C 77/33; or the
proposals by Allais 1991.
13 This group consists of thirteen members from France, Switzerland, Germany, Austria, Italy, Sweden, Spain,
and the UK, who are mostly university scholars and often economists.
14 European Constitutional Group 1993.

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establishment of a (albeit de facto extremely minimalist) model of social market economy
rather than, as they suggest, a radically neo-liberalist regime. From this perspective, drafting a
completely new constitutional framework is also rooted in the wish to depart from the present
acquis communautaire.
The 1994 Herman Report by the Institutional Committee of the EP, too, is not only clearly
in favour of a European Constitution but even proposes an elaborated draft. Along with many
legal scholars, this report argues that the existing Treaties together with several acts of equal
value, some leading principles drawn from the case law of the ECJ (mainly direct
applicability and primacy), and a series of special rights conferred upon the citizens of the
Union, already constitute a constitutional legal order. However, rapporteur Herman argues
for a fully-fledged explicit constitution for two reasons: First, a constitution would put an
end to the fiction of still untouched sovereignty of the Member States and of the ambiguity
allowing the national governments to blame Brussels for failures and to attribute success to
themselves15. Second, a formal constitution would rank comparatively higher than the present
treaty framework in terms of democracy, not least because not only the Member States, but
also the EP should be involved in its formulation and adoption16. Among the many
innovative provisions of the Constitution proposed in the Herman Report is the entry into
force as soon as the majority of Member States representing at least four fifths of the
population ratified it17. Those Member States which could not ratify in due time would either
have to withdraw or stay in the changed Union. In case of withdrawal special agreements be-
tween the Union and these Member States should treat them as privileged associated partners
similar to the status in the EEA agreement18.
Clearly, the whole idea of a formal constitution for the Union provokes strong reactions of
the `anti-federalists' among the European politicians. To cite just one example: John Major

15 Herman Report 1994, II.3.
16 Herman Report 1994, III.C.2.
17 A comparable provision of the 1984 Draft Treaty on European Union asked that the necessary majority of
Member states represent two thirds of the overall population (Article 82).
18 Herman Report 1994, Article 47 of the proposed Constitution.